Hammond v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR JUSTICE HARRISON |
| Judgment Date | 13 January 2004 |
| Neutral Citation | [2004] EWHC 69 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3347/2002 |
| Date | 13 January 2004 |
[2004] EWHC 69 (Admin)
Lord Justice May
Mr Justice Harrison
CO/3347/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand London WC2
MR H TOMLINSON QC AND MR P DIAMOND (instructed by Coningsbys) appeared on behalf of the CLAIMANT
MR N SEED QC (instructed by CPS Dorset) appeared on behalf of the DEFENDANT
We are very grateful to counsel on both sides and those supporting them for the careful and comprehensive submissions that have been made in this appeal. The appeal is by way of case stated by the justices for the Commissionaire of Dorset sitting at a Magistrates' Court at Wimbourne on 24th April 2002. They had before them an information preferred by the Chief Constable of the Dorset police against Harry John Hammond, the information having been preferred on 4th December 2001.
There were procedural complications relating to this appeal. Unfortunately, Mr Hammond died before the appeal could be brought on. The question arose whether, in those circumstances, it was legitimate and appropriate for the appeal to proceed. Maurice Kay J, as he then was, decided on paper that it should not, but Newman J was subsequently, upon oral argument, persuaded that it should. Mr Seed, on behalf of the Director of Public Prosecutions, originally questioned whether this was an appropriate decision but he has not pursued that question. In addition, an application was made to Newman J to amend the case stated; the amendments being entirely to the questions which this court was being invited to consider. Newman J gave a favourable indication to that application but did not, so we are told, actually make an order. The appellant, now represented by his executors, and the Director of Public Prosecutions came to an accommodation that the added questions were appropriate.
Unfortunately, the justices were not completely kept in the picture about this. The court has received a letter dated 12th January from the Deputy Justice's clerk indicating that the justices had not had the opportunity to consider whether their case should stand amended. The letter indicates that, of course, if they are ordered to do so they will comply with the order. In the circumstances where the proposed amendment is not to the substance of the case but to the questions which the court is asked to consider, this court was persuaded this morning to order that the amendments in subparagraphs (d) and (f) of paragraph 7 should be made, and was also persuaded that we should proceed to hear the appeal upon the amended case. In so far as this is an apparent discourtesy to the justices, we apologise, but I hope they will understand that economy and the proper administration of justice led to that result.
Mr Hammond was charged on this information with an offence under section 5 of the Public Order Act 1986. It was said that on 13th October 2001 he was in the square in Bournemouth when he displayed a writing or sign which was threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, and that this was contrary to sections 5(1) and 5(6) of the 1986 Act.
The justices' case stated tells us they heard the information on 23rd and 24th April 2002 and that they found the following facts:
"(a) [Mr Hammond] is an Evangelical Christian who has been a preacher for 20 years; he is a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.
(b) During the summer of 2001, [Mr Hammond] had a large double sided sign made bearing the words: 'Stop Immorality', 'Stop Homosexuality' and 'Stop Lesbianism' on each side and attached to a pole.
(c) Prior to 13th October 2001, [Mr Hammond] had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.
(d) During the afternoon of Saturday 13th October 2001, [Mr Hammond] travelled by bus to The Square, Bournemouth to preach with the sign; during the bus journey [Mr Hammond] covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.
(e) On arriving at The Square, Bournemouth [Mr Hammond] positioned himself by a floral display near the Obscura cafe in the pedestrianised area of the town centre and began preaching holding the sign upright so that it was clearly visible to passers-by.
(f) A group of 30 to 40 people gathered around [Mr Hammond], arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at the appellant; one person was hit over the head with the placard.
(g) Members of the public in the area at the time included: Miss Laura Backley, who was disgusted by the sign and found it annoying and, although not personally insulted, felt it was insulting to homosexuals and lesbians; Ms Michelle Watling who was upset, shocked and insulted by the sign; Miss Kerry Warden who found the sign insulting; Mr Sean Tapper, a homosexual, who lived in the street where the incident occurred and was personally insulted by the sign, upset and angry; and Mr Christopher Roger Mooney, Sean Tapper's partner, who found the sign insulting and distressing.
(h) At one point someone tried to pull the placard away from the [Mr Hammond] during which [Mr Hammond] fell backwards to the ground; [Mr Hammond] got up again and continued with his preaching displaying the sign; at this point a member of the public poured water over [Mr Hammond's] head.
(i) Police Constables Gandy and Elliot attended the scene; Police Constable Gandy found the crowd to be agitated, angry and insulted.
(j) Police Constable Gandy spoke to [Mr Hammond] for several minutes and asked him to take the sign down and leave the area; [he] refused saying he was aware that his sign was insulting because he had had a similar reaction previously but that he intended to return the following Saturday to preach with the sign again.
(k) Police Constables Gandy and Elliott discussed the situation for several minutes, during which time they were approached by members of the public who were outraged that [Mr Hammond] had not been arrested.
(l) Police Constable Elliott was of the opinion that it was not necessary for the police to become involved in the incident or to take any action.
(m) Police Constable Gandy was of the view that the appellant was provoking violence and that it was not safe for her to leave the scene without intervening, and she therefore arrested [Mr Hammond] for breach of the peace."
We have been shown two photographs of the sign that Mr Hammond was holding on that occasion. The sign shows the words which the magistrates have found and also, as it happens, in each of four corners of the sign, are the words "Jesus is Lord".
The facts of the case give rise to a generic problem which may be stated briefly thus. Freedom of expression is an axiomatic freedom in this country, now enshrined in the Human Rights Convention and the Human Rights Act 1998. Those who wish to exercise their freedom of expression, generally speaking, are not committing any offence if they do so within the law. As Lord Reid said in Brutus v Cozens [1973], a House of Lords decision reported at AC 854, 867, the quotation I am about to read coming from page 862 at letter (e):
"Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest. It would have been going much too far to prohibit all speech or conduct likely to occasion a breach of the peace because determined opponents might not shrink from organising or at least threatening a breach of the peace in order to silence a speaker whose views they detest. Therefore vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or a specially narrow meaning. They are all limits easily recognisable by the ordinary man. Free speech is not impaired by ruling them out."
Those words were spoken with reference to a section of the Public Order Act 1936.
The problem, of course, is that a person exercising their right of freedom of expression may, by doing so, provoke reaction in others. It may be said, as has been said on behalf of the appellant in this case, that the preservation of public order should be directed at stopping those who react rather than stopping the expression of views by a person who is seeking to do so. It is a very knotty problem for the law to sort out how to deal with that question. The solution that has been arrived at was summarised in the judgment of Schiemann LJ in the case of Bibby v Chief Constable of Essex [2000] reported at Justices of the Peace Reports, volume 164 at page 297, the quotation coming from page 302-F where Schiemann LJ said this:
"Counsel for the claimant submitted the case law justified the following. In order to exercise the now exceptional common law power of arrest, certain conditions must be met in relation to the person who is to be arrested and his conduct:
(1) There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the...
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